To block union power, school reformers try courts

Education reformers stymied by teachers unions and liberal state legislatures increasingly are turning to the courts to get their way on everything from funding charter schools to making it easier to fire teachers.

It’s an end-run strategy championed by Republican and Democratic reformers alike: When they find it hard to change policies through the political process, they reframe the issues as civil rights crusades and take them to the courts.

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The tactic proved successful last year in the landmark Vergarav. California decision, in which a California judge struck down the state’s teacher tenure system, ruling that it protected incompetent educators and violated the constitutional rights of children stuck in dead-end classrooms. A similar case is making its way through the courts in New York; on Thursday, a state Supreme Court judge ruled a trial could go forward, saying that he “will not close the courthouse door to parents and children with viable constitutional claims.”

Also last week, activists in Massachusetts announced a legal effort to strike down state limits on charter schools. They plan to argue the caps are unconstitutional because they trap poor and minority children in failing urban districts.

The new legal approach threatens to drive a deeper wedge in a Democratic Party already badly split on education policy. The party traditionally has aligned itself with teachers unions to champion policies such as smaller class sizes and increased investment in public schools. But increasingly, high-profile Democrats — including President Barack Obama — have demanded educational reforms that the unions oppose, such as expanding privately managed charter schools and evaluating teachers in part based on their students’ scores on standardized tests.

Democrats have walked a tightrope on the court cases. Education Secretary Arne Duncan initially applauded the Vergara verdict abolishing tenure in California. After an outcry from the teachers unions, he issued a second statement noting that he supports “job security for effective teachers.” (It didn’t placate the unions; the National Education Association later demanded Duncan’s resignation.)

The New York case also set off sparks within the party when two prominent former aides to Obama announced their public relations team would not only promote the lawsuit but would also seek to replicate it nationwide. Union leaders were so furious, they successfully pressured a liberal communications firm that had been working with the PR team to cut ties.

Democrats supporting the legal tactics say they have little choice but to turn to the courts because teachers unions remain powerful enough, despite declining numbers, to block policy changes in many states.

“Judges don’t take campaign contributions, and they don’t care how many lobbyists you employ,” said Ben Austin, a longtime Democratic operative who now serves as policy director for Students Matter, the group that organized the lawsuit to overturn tenure in California.

“Playing by the existing rules [of the political process] and expecting transformative change for kids is like going to Vegas and expecting to consistently win against the house,” Austin said. “It’s just not very likely.” But the courts, he said, can “chart a new path forward” for those seeking to reshape the education landscape.

Those pressing the lawsuits said they drew inspiration from the gay rights movement, which has achieved a string of successes in the courts even in states where the political process did not legalize same-sex marriage. Campbell Brown, a former CNN anchor who helped organize the New York suit, even brought on board David Boies, the lawyer who toppled California’s gay-marriage ban in court, as chairman of her organization, the Partnership for Educational Justice.

The Constitution is silent on the right to public education, so potential plaintiffs must make their case in state courts. And not every state constitution contains language guaranteeing all children a free education. Those that do often use vague phrases open to interpretation: Many states, for instance, promise a “minimally adequate” or a “general and uniform” public education system but don’t explain precisely what that means.

For decades, advocates for low-income, disabled and rural students have used those clauses to demand greater — and more equitable — funding for public schools, with varying results.

Just last week, the Commonwealth Court of Pennsylvania heard arguments on a case brought by parents and students who argued that the Legislature has failed to provide enough funds to give children the “thorough and efficient” education guaranteed by the state Constitution. And New York teachers have organized several protests to demand more resources; they’re even circulating lists of how much the state “owes” every school in the state.

While unions have been front and center in the funding cases, they’re fighting back hard against the new crop of reform litigation.

The very idea of calling the number of charter schools in the state a civil rights issue is “mind-boggling,” said Barbara Madeloni, president of the Massachusetts Teachers Association.